The grounds of appeal

8.The Claimant seeks permission to appeal on the grounds (1) that the findings of justification in respect of the defamatory charges on which the Defendants succeeded were against the weight of the evidence, (2) that the judge erred in law in admitting the evidence of Evans as to the construction of the words "Holocaust denier," (3) that the judge erred in law in admitting the evidence of Van Pelt (i) except in the field of cultural history, so that Van Pelt should not have been permitted to give evidence (ii) as to the architecture of Auschwitz, and/or (iii) as to (a) chemistry and (b) the technology of crematoria, and (4) in applying section 5 of the Defamation Act, 1952 in respect of the libels on which the Defendants offered no evidence, or which the Defendants wholly failed to justify.

9.When refusing permission to appeal his order of 11th April 2000, Gray J observed that "essentially [the] case turned on questions of fact, the most important of which entailed assessing the Claimant's credibility. Public interest can be [a] reason for granting permission, but that is a question best left to the C.A."

10.Undoubtedly this case is of the greatest public interest. Gray J observed after giving judgment that in his opinion it was self evident and beyond any possible dispute that this was a matter of public interest, and gestured to the packed court room. As is well known, the trial at first instance attracted worldwide publicity. The issues canvassed were plainly of the greatest importance for the interpretation of the political and military history of the twentieth century. Irving relies on this ground in seeking permission to appeal. He contends no less strongly that Gray J erred seriously in weighing the evidence, so that his findings are wrong and unjust.

11.The basis on. which Gray J assessed the Claimant's credibility was not an adverse general estimate of Irving, or his demeanour as a witness, or his general character. Indeed, Gray J makes the most flattering observations about Irving as a military historian at 13.7. Irving gratefully adopts all that Gray J. says in 13.7, and relies upon it in support of his submission at paragraph 16 below.

12.Neither Defendant gave oral evidence, nor did they call any witnesses of fact, but only experts, to whom the Claimant returns at paragraphs 17 to 21 below. It accordingly follows that Gray J was certainly not impressed by the Defendants' demeanour, as Lipstadt took good care not to have her witness statement and her affidavits tested in cross-examination.